The courts are independent, separate, and equal to the political branches of government. The system of separation of powers created by the Constitution serves to ensure that there are appropriate checks on the judiciary.
The Federalist Papers
First, as Alexander Hamilton noted in Federalist #78, the judiciary can only issue decisions, but it does not have any means to enforce them. "It [the judiciary] may truly be said to have neither FORCE NOR WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgment." (emphasis in original). For this reason, Hamilton called the judiciary, "the least dangerous branch."
Political Branches
The President and Congress have checks on the judiciary. For instance, judges must be nominated by the President and confirmed by the Senate before taking office. Moreover, Congress has the authority, under Article III, Section II, to limit the jurisdiction of the Supreme Court under certain circumstances. Article III, Section II states that "[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." The Supreme Court upheld the authority of Congress to limit its jurisdiction under such circumstances in the case of Ex Parte McCardle, 74 U.S. 506 (Wall.) (1866).
It is important to note, however, that judicial independence is based upon a respect for the rule of law. The political branches have not frequently exercised many of their checks on the Courts, e.g., limiting their jurisdiction, because of the negative effect that this might have on the respect for the rule of law. For this reason, the most common check that the political branches of government exercise on the Courts today focuses on the nomination process. In other words, the political checks on the courts are exercised before, and not after, appointees take their seats on the bench; thereby preserving judicial independence by leaving politics out of the judicial process. |
